On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5606-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 15, 2012 -
Before Judges Reisner and Yannotti.
Plaintiff Samuel Mitry appeals from orders entered by the Law Division on January 20, 2012, dismissing his complaint against defendants Anthony I. Okafor, M.D. (Okafor) and East Orange General Hospital (EOGH) with prejudice. For the reasons that follow, we reverse.
On July 7, 2011, plaintiff filed a complaint in which he alleged that in April 2011, Okafor treated him for a laceration on his forehead. Plaintiff claimed that when Okafor sutured the laceration, he did not exercise the degree of care or skill, nor possess the knowledge, ordinarily exercised by others of his profession. Plaintiff additionally claimed that Okafor was acting within the scope of his employment with EOGH when he treated him. Defendants filed answers denying liability.
In discovery, plaintiff provided answers to interrogatories, in which he asserted that on April 8, 2011, Okafor treated him in EOGH's emergency room for a laceration across his forehead. Plaintiff stated that Okafor "supposedly cleaned the wound and then proceeded to use thread and needle to stitch the wound in a very poor quality."
Plaintiff stated that he is permanently disfigured as a result of Okafor's treatment of the wound, and he was not able to have reconstructive surgery due to the swelling caused by Okafor's failure to clean the wound thoroughly. Plaintiff also stated that his face was "deformed due to the infection" that resulted from the treatment. He said he was out of work for a week as a result of Okafor's treatment.
Plaintiff also provided defendants with an affidavit of merit, dated September 27, 2011, from Ray Silen, M.D., F.A.C.S. (Silen). In his affidavit, Silen stated that his specialty is surgery, including "urgent surgical care," and he is board certified in surgery. Silen said he had reviewed EOGH's emergency report, and the records of plaintiff's subsequent treatment. Silen opined that in his professional opinion, there was a reasonable probability that the treatment and care provided by defendants and the skill or knowledge exercised by them, "fell outside the accepted customs, standards and/or practices of surgeons and medical providers."
On December 30, 2011, Okafor filed a motion to dismiss the claims against him because plaintiff had not complied with the affidavit of merit statute, N.J.S.A. 2A:53A-27. Okafor asserted that he is board certified in internal medicine and in emergency medicine, and he had treated plaintiff in EOGH's emergency room. He argued that Silen's affidavit did not comply with N.J.S.A. 2A:53A-27 because it was not provided by a board-certified emergency room physician.
On January 10, 2012, EOGH filed a cross-motion to dismiss plaintiff's complaint. EOGH noted that the claims against it were based on a theory of respondeat superior. EOGH also argued that Silen's affidavit did not comply with N.J.S.A. 2A:53A-27, for the reasons advanced by Okafor.
In response to the motions, plaintiff's counsel filed a certification in which he stated that he had "no problem" with the court dismissing the complaint, but argued that the court should do so without prejudice. Plaintiff's counsel agreed that the affidavit of merit must be furnished by an emergency room physician because plaintiff's claim was against an emergency room doctor.
The trial court decided the motions without oral argument. The court entered orders dated January 20, 2012, granting the motions and dismissing the complaint with prejudice. This appeal followed.
Plaintiff argues that: (1) an affidavit of merit was not required here because this is a "common knowledge" case; (2) Silen's affidavit met the requirements of the affidavit of merit statute; and (3) the complaint should not have been dismissed with prejudice ...